The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.
Friday, January 22, 2010
Thursday, January 21, 2010
Authenticating Web Pages as Evidence
This is an excellent article concerning the authentication of web pages for evidentiary purposes written by M. Anderson Berry and David Kiernan. An excerpt--
Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."
The article contains tips for authenticating web pages pursuant to the Federal Rule of Evidence, easily adaptable for state court arguments. It also has an interesting section about court cases involving the Internet Archive, a digital archive of web pages that are no longer active.
Debtor's Occupation Relevant in Objection to Discharge
Mr. & Mrs. Contos walked into a bank. They submitted a credit application showing that Mr. Contos earned $280,000 per year and that they owned a substantial amount of other assets. The bank extended them a line of credit of approximately $500,000.
They promptly spent (stole) the cash and filed bankruptcy. It turns out that Mr. Contos made only about $20,000 per year, not $280,000.
The bank, of course, filed an objection to discharge under Section 523(a)(2)(B). Under this section, a discharge can be prevented when the debt was obtained by making a materially false statement in writing to the creditor with the intent to deceive.
In trying to prove the elements, the bank wished to introduce evidence of Mr. Contos' occupation. He was a mortgage broker. The bank wanted to show that he had he intent to deceive because, based on his occupation, he knew or should have known the importance of the accuracy of the information that he put on his loan application.
Mr. Contos argued that his occupation was irrelevant. Wrong.
The court allowed evidence relating to his occupation and subsequently found that the debt was non-dischargeable.
In re Contos, 2009 WL 3470695 (Bkrtcy.N.D.Ill.).
They promptly spent (stole) the cash and filed bankruptcy. It turns out that Mr. Contos made only about $20,000 per year, not $280,000.
The bank, of course, filed an objection to discharge under Section 523(a)(2)(B). Under this section, a discharge can be prevented when the debt was obtained by making a materially false statement in writing to the creditor with the intent to deceive.
In trying to prove the elements, the bank wished to introduce evidence of Mr. Contos' occupation. He was a mortgage broker. The bank wanted to show that he had he intent to deceive because, based on his occupation, he knew or should have known the importance of the accuracy of the information that he put on his loan application.
Mr. Contos argued that his occupation was irrelevant. Wrong.
The court allowed evidence relating to his occupation and subsequently found that the debt was non-dischargeable.
In re Contos, 2009 WL 3470695 (Bkrtcy.N.D.Ill.).
Wednesday, January 20, 2010
Massive debt collection firm closes its doors
Mann Bracken, one of the country's largest debt collection firms, suddenly went out of business this week. They were based out of Maryland, but had 24 offices across the country. On Thursday, a Maryland judge dismissed tens of thousands cases handled by the firm. They also have cases in every other county in Maryland and many more cases pending across the country.
The firm blamed its failure on the bankruptcy filing of a company that handled its support services. That is amazing. Didn't that bankrupt company have any competitors that could have picked up the slack for this firm? More details here.
The firm blamed its failure on the bankruptcy filing of a company that handled its support services. That is amazing. Didn't that bankrupt company have any competitors that could have picked up the slack for this firm? More details here.
Tuesday, January 5, 2010
Expungement Backlogs
I occasionally handle expungement petitions on behalf of clients who have been charged with crimes but not convicted. This is a process by which the court can order the State Police and the local arresting agency to destroy all records of a person's arrest, including finger prints, mug shots, etc.
It is a very straight-forward process. Either the client is eligible for expungement pursuant to the statute, or he is not. In order to be eligible, the client must have resolved the charge without a conviction, he can have no other convictions on his record for anything else, and there must be no other charges currently pending against him.
If he is eligible, the State's Attorney can still object and request a hearing. The State has never objected in any of my cases. Even though all of my expungement petitions have been granted, I am still waiting for the actual records to be expunged for two separate clients. These two clients have been waiting almost one year for the expungement of their arrest records. I have had to wait just as long in all of the expungements that I have done in the past. By not destroying the records, the police departments are in direct violation of a court order, but they simply do not care. Repeated phone calls and letters have no effect.
So, I was happy to see the new Expungement Backlog Accountability Law which was included in the recent amendments to the expungement statutes which took effect January 1, 2010. This new law requires the State Police to report the Governor and the Attorney General, and to make public on the State Police website, the following information for the previous fiscal year:
(1) the number of petitions to expunge received;
(2) the number of petitions to expunge to which they have objected;
(3) the number of orders to expunge received;
(4) the number of orders to expunge records completed;
(5) the number of orders to expunge records that have not been completed.
I don't see any enforcement provisions or penalties in this new law, so I question the actual "accountability" that it will bring to the State Police, but it is a great start.
There are several other amendments to the expungement statute which I have not addressed. Here is a link to the complete text of the amendments. Here is a link to the State Appellate Defender's Expungement Handbook revised for 2010. I am also adding this Handbook to the Forms Archive.
It is a very straight-forward process. Either the client is eligible for expungement pursuant to the statute, or he is not. In order to be eligible, the client must have resolved the charge without a conviction, he can have no other convictions on his record for anything else, and there must be no other charges currently pending against him.
If he is eligible, the State's Attorney can still object and request a hearing. The State has never objected in any of my cases. Even though all of my expungement petitions have been granted, I am still waiting for the actual records to be expunged for two separate clients. These two clients have been waiting almost one year for the expungement of their arrest records. I have had to wait just as long in all of the expungements that I have done in the past. By not destroying the records, the police departments are in direct violation of a court order, but they simply do not care. Repeated phone calls and letters have no effect.
So, I was happy to see the new Expungement Backlog Accountability Law which was included in the recent amendments to the expungement statutes which took effect January 1, 2010. This new law requires the State Police to report the Governor and the Attorney General, and to make public on the State Police website, the following information for the previous fiscal year:
(1) the number of petitions to expunge received;
(2) the number of petitions to expunge to which they have objected;
(3) the number of orders to expunge received;
(4) the number of orders to expunge records completed;
(5) the number of orders to expunge records that have not been completed.
I don't see any enforcement provisions or penalties in this new law, so I question the actual "accountability" that it will bring to the State Police, but it is a great start.
There are several other amendments to the expungement statute which I have not addressed. Here is a link to the complete text of the amendments. Here is a link to the State Appellate Defender's Expungement Handbook revised for 2010. I am also adding this Handbook to the Forms Archive.
My Rendition of a Career as an Attorney
How about some art on this blog? Bored one night studying for Constitutional Law, I decided to take a picture of this small lamp with my iPhone. Recently I gave it a symbolic twist and submitted it to win a scholarship...fingers are crossed! Enjoy!
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